Supreme Court has not declared fatwas illegal. It has situated them within the law.

The Supreme Court has not declared fatwas illegal. It has situated them within the law.

A victory day for the Muslims, a day of deliverance for all others â€” these diametrically opposed perceptions of the apex courtâ€™s ruling on the fatwa and Dar-ul-Qaza traditions of Muslim society are being projected by the Urdu and English media respectively. Neither is warranted by the letter and spirit of the courtâ€™s absolutely innocuous judgment.

A few years ago, a Delhi lawyer had filed a writ petition in the Supreme Court seeking a ban on the fatwa system and shariat courts, alleging that these were tantamount to running a â€œparallel judiciaryâ€ in the country. A division bench has now pronounced its judgment, which has been reported in the print media under sensational captions and is being hotly debated on TV channels. All this hurly burly is based on sheer misinformation about the system challenged and reflects a grave misreading of the judgment.

The Arabic word â€œfatwaâ€ means an exposition of religious law by a Muslim cleric or seminary in answer to a specific query. It is like a lawyerâ€™s opinion, which the querist may or may not act upon. The fatwa-giver writes his opinion as per his own understanding of religion, right or wrong, and does not claim it to be authentic â€” fatwas always conclude with the words wallahu aâ€™lam bi-sawab (god knows better with certainty). Muslim law neither obliges any person to seek a fatwa in any matter nor makes it incumbent upon her to follow it if obtained.

As regards shariat courts, known as Dar-ul-Qazas, these are in the nature of what is known in law as alternative dispute resolution (ADR) mechanisms and generally decide personal law discords of disputants who voluntarily approach them and agree to abide by their verdicts. In some cases, where one party to a family dispute (generally a wife) seeks relief from a Dar-ul-Qaza and the other party unscrupulously keeps absent just to harass the complainant, a decision may, in the interest of justice, be given ex parte. No Dar-ul-Qaza decision, whether given ex parte or after hearing the parties, constitutes what is known in law as res judicata so as to bar the jurisdiction of any state court to entertain and decide the dispute.

A Dar-ul-Qaza hierarchy was first established on a mass scale in Bihar in 1919 and has successfully been operating there for over nine decades. Dar-ul-Qaza decisions are often taken by the disputants to local civil courts, which treat them as arbitration awards and pass decrees accordingly. Justice C.K. Prasad, who wrote the Supreme Court judgment, served in Bihar for long years as advocate general and high court judge.

He must be fully conversant with the true nature of the so-called shariat courts and his decision reflects a proper understanding of the system. He had spoken his mind during the hearing of the case in February this year when he told the petitioner: â€œYou are assuming all fatwas are irrational. Some fatwas may be wise and may be for [the] general good also. People in this country are wise enough. If two Muslims agree for mediation, who can stay it? It is a blend of arbitration and mediation.â€ His judgment is fully in accord with this thinking.
That the court has declared fatwas or Dar-ul-Qazas to be â€œillegalâ€ is a fantasy; that it has endorsed these religious traditions with impunity a delusion. Obviously, as long as the freedom of speech and expression guaranteed by the Constitution is available to the citizens, the court cannot restrain a mufti from giving his opinion on a religious matter. And, as long as there is legally sanctioned room for settlement of disputes by non-state bodies, the court cannot isolate the mechanism operating for it in any particular community and order its abolition. The SC therefore has done nothing of the sort â€” the petitionerâ€™s demand for that has been clearly rejected, and rightly so.
At the same time, the court has made it clear, again absolutely rightly, that neither a fatwa nor a Dar-ul-Qaza verdict can be forcibly implemented by anybody against the wishes of the person who obtained it. It has further observed that in a bilateral dispute, a third partyâ€™s request for a fatwa should not be entertained by the muftis. Unfortunately, both practices are rampant.

Unconcerned persons having no locus standi in a particular dispute seek and obtain a fatwa, and the neighbours of the parties in dispute or the local community organisations harass them for not acting upon it. Instead of speaking out against such clearly unlawful practices in a mild way, the SC, in my opinion, could have issued mandatory directions in this regard. Of course, it has said in so many words that a person whose legal rights are being violated can always approach a state court for relief.

Instead of rejoicing over the judgment, Muslims must duly take its real message and translate it into concrete action. Others must let the judgment remain what it is â€” there is nothing in it for them to â€œcelebrateâ€. Muslims should also evolve ways and means to ensure that fatwas are issued only by real experts in religious jurisprudence.
The writer has been chair of the National Minorities Commission and member, Law Commission of IndiaCourt, misquote | The Indian Express | Page 99

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This (the quote below) maybe the legal interpretation on the Sharia, but the intent is fraudulent

The Arabic word â€œfatwaâ€ means an exposition of religious law by a Muslim cleric or seminary in answer to a specific query. It is like a lawyerâ€™s opinion, which the querist may or may not act upon. The fatwa-giver writes his opinion as per his own understanding of religion, right or wrong, and does not claim it to be authentic â€” fatwas always conclude with the words wallahu aâ€™lam bi-sawab (god knows better with certainty). Muslim law neither obliges any person to seek a fatwa in any matter nor makes it incumbent upon her to follow it if obtained.

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More than any law in the world, social ostracisation is the biggest fear of all individuals.

If Allah knows better, then it is best left to Allah.

Islam is a contract between the Person and Allah and the good thing about Islam is that their is no intermediation between God and the Person!

It is a One to One equation.

As regards shariat courts, known as Dar-ul-Qazas, these are in the nature of what is known in law as alternative dispute resolution (ADR) mechanisms and generally decide personal law discords of disputants who voluntarily approach them and agree to abide by their verdicts. In some cases, where one party to a family dispute (generally a wife) seeks relief from a Dar-ul-Qaza and the other party unscrupulously keeps absent just to harass the complainant, a decision may, in the interest of justice, be given ex parte. No Dar-ul-Qaza decision, whether given ex parte or after hearing the parties, constitutes what is known in law as res judicata so as to bar the jurisdiction of any state court to entertain and decide the dispute.

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That is all very fine to espouse and soft soap the issue, but the reality is that there are many fatwas that contravenes the basic human rights guaranteed by the Law and the Constitution as was the case of Shah Bano and the foolish and most idiotic fatwa which declared the father in law who raped his daughter in law as the new husband! Or the case when a man in a drunken stupor pronounced talaq three times and then wanted to recant, but could not unless his wife married another and cohabited and then divorced so that the drunk could remarry his wife.

A Dar-ul-Qaza hierarchy was first established on a mass scale in Bihar in 1919 and has successfully been operating there for over nine decades. Dar-ul-Qaza decisions are often taken by the disputants to local civil courts, which treat them as arbitration awards and pass decrees accordingly. Justice C.K. Prasad, who wrote the Supreme Court judgment, served in Bihar for long years as advocate general and high court judge

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Another stupid argument.

it was successful because none dared to challenge lest one was socially ostracised and religious rites denied. Everyone loves his religion and so are forced to take a whole lot of nonsense that is heaped. It in no way indicates success. It only indicated success in duress and religious blackmail.

It is not only that the Personal laws of Muslims that require a relook, but also the laws of each religious entity. All are flawed and all are not in sych with the contemporary environment.

It cannot be made illegal as we do have right to religion ....
The only thing said is that its implementation cannot be forceful ...
Which means any individual can deny the decision taken with respect to that fatwa and even approach court it imposed against his/her will...

We have IPC in our country and thus FATWA cannot be implemented forcefully....

It cannot be made illegal as we do have right to religion ....
The only thing said is that its implementation cannot be forceful ...
Which means any individual can deny the decision taken with respect to that fatwa and even approach court it imposed against his/her will...

We have IPC in our country and thus FATWA cannot be implemented forcefully....

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Thats OK.

But what about social ostracisation if you do not follow the fatwa or the salisa courts of Bengal or the Khaps of Haryana.

Can you thereafter live in the village?

People have been killed and the Govt could not protect.

who will take a chance and hope that if one defies they will be protected by the Govt?

Sir I am quite familiar with the situation you are referring to ...
Honestly 10 years back it was not possible but today yes it is...
I have seen these panchayats .... I know what they do and how they do...I have seen them changing decisions even taking them back...

Hukka paani band... Koi inse baat ni karega..etc etc are past today people also prefer going to courts than going to such org..
You said Haryana...In haryana earlier if a guy marries a girl of same village tehy were killed... now they are banished..Its notcorrect but they are getting liberal...

Imho fatwa should apply to muslims only; non muslims should not be exposed to sharia law.

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Fatwa should be applicable to only those persons who want to obey it. There are none in India who has the executive power to implement the fatwa on somebody or a on a group except the Govt. who obviously don't take cognizance of it.

So, if Fatwa is externally non-enforceable, then best it serves as a advisory only for those who wishes to follow by it.

If some group tries to implement Fatwa, then they will be classified as a vigilante group, whose legal status will probably be deemed outlawed.

That should be done in Pakistan where the Shariah applies to all, irrespective of religion.

India is a secular country.

And it is silly to have laws that are religion centric.

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I am a Pakistani and a proud one too but here I am a DFI'an contributing to a debate so kindly don't drag Pakistan into this, its annoying and often triggers trolls to derail the thread.

I am not challenging that India is not secular but the fatwa exist under the sharia law and you haven't banned it, you can't ban it without bypassin the constitution.

I am not a fan of sharia law but then again who am I? For a large section of muslims sharia and fatwas are
important in religious and social matters, specially disputes hence they look for guidence to the clerics.

In this light I think sharia and fatwa should be allowed and respected but within the Muslim community only.

Religion cannot be part of Law making body here in India...
In India Indians are bound by Inidan Laws only.....

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There are some cases where a muslim will favor the s a fatwa through shariah more than what the state says in order to have a clear conscience.

An interrsting scenario from a Pakistani drama I watched recently:

A middle class man leaves his wife and two kids behind in Karachi to try his luck in Europe. Little does he know that the agent is fake. He enters Greece illegaly through sea and gets shot in the gun fire with the coast guard. He gets severly wounded but survives and lands in hospital where he remains in coma for almost two years. Pakistani embassy declares him dead as his passport and belongings are found floating in the sea.
Back home his wife is married off to some old rich
widower.
Two years later the man gains consciousness and returns, only to find out that his wife has remarried.
He claims his wife and kids in.court as she is still under his nikah and a second nikah for a muslim woman is considered haram in islam.

This is a specific case for the sharia and fatwa as the decision of local court may not be in line with the believes and religious sentiment of all parties concerned.

There are some cases where a muslim will favor the s a fatwa through shariah more than what the state says in order to have a clear conscience.

An interrsting scenario from a Pakistani drama I watched recently:

A middle class man leaves his wife and two kids behind in Karachi to try his luck in Europe. Little does he know that the agent is fake. He enters Greece illegaly through sea and gets shot in the gun fire with the coast guard. He gets severly wounded but survives and lands in hospital where he remains in coma for almost two years. Pakistani embassy declares him dead as his passport and belongings are found floating in the sea.
Back home his wife is married off to some old rich
widower.
Two years later the man gains consciousness and returns, only to find out that his wife has remarried.
He claims his wife and kids in.court as she is still under his nikah and a second nikah for a muslim woman is considered haram in islam.

This is a specific case for the sharia and fatwa as the decision of local court may not be in line with the believes and religious sentiment of all parties concerned.

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Marriages in India comes under Muslim personal law board, which has legal sanctity and their ruling has legal validity though either part can contest that in court, wherein courts will look into it.
No self styled cleric has the right to issue fatwa or hold a Sharia court on matters which falls under ambit of Muslim personal law board.

In India missing person can't be declared dead before 7 years if body is not recovered and identified. The story you are writing is not unique and has been covered in judgements in the past also.

But, whether those incidents/cases should only be considered only through the lenses of the religion is a raging debate in India. Because religion has been historically unjust to woman. Thus completely relying on religion is an obstacle in the path of emancipation in India.

Let me modify the story a little for you.

Let the man goes incognito in a foreign country, marries a local girl and settles there. And after waiting of say 7 years ( or the number of years legally valid) the first wife in the country re-marries.

One sudden day he comes back and claims as the talak has not taken place so, the first wife is still his legally wedded wife, and her second marriage be annulled irrespective of the fact that he has not catered for his conjugal duties towards his first wife. How about that for a change?

@Neo i think the case has been very clearly explained.... @ladder if a man goes missing I believe even I am not aware of but the women can file a divorce and remarry and she need not wait for 7 long years (still i m lookin for exact law on it)... and it is surely independent of religion...

Marriages in India comes under Muslim personal law board, which has legal sanctity and their ruling has legal validity though either part can contest that in court, wherein courts will look into it.
No self styled cleric has the right to issue fatwa or hold a Sharia court on matters which falls under ambit of Muslim personal law board.

In India missing person can't be declared dead before 7 years if body is not recovered and identified. The story you are writing is not unique and has been covered in judgements in the past also.

But, whether those incidents/cases should only be considered only through the lenses of the religion is a raging debate in India. Because religion has been historically unjust to woman. Thus completely relying on religion is an obstacle in the path of emancipation in India.

Let me modify the story a little for you.

Let the man goes incognito in a foreign country, marries a local girl and settles there. And after waiting of say 7 years ( or the number of years legally valid) the first wife in the country re-marries.

One sudden day he comes back and claims as the talak has not taken place so, the first wife is still his legally wedded wife, and her second marriage be annulled irrespective of the fact that he has not catered for his conjugal duties towards his first wife. How about that for a change?

@Neo i think the case has been very clearly explained.... @ladder if a man goes missing I believe even I am not aware of but the women can file a divorce and remarry and she need not wait for 7 long years (still i m lookin for exact law on it)... and it is surely independent of religion...

We have IPC we need UCL....for these cases only....

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I was talking about the below

Mishra submitted that the Vessel went missing on 09.11.1993 and the 'missing persons' could be declared to be officially 'dead' only after seven years, i.e. after 09.11.2000.

I was about to quote you from " Mulla's Principles of Mohammedan Law" about special cases of divorce. Specially one where a Qazi can act as husband's deputy and can pronounce 'Talak' for him in his absence even without his consent.

In my case the drama ended in a typical Pakistani way: according to the fatwa she had to return to her first husband since 18 months had not passed but eventhough she loved her first husband very much she was morally obliged to choose for the second because he had saved her life and was there for her when all the doors had closed.

The typical Pakistani end came when the second husband dies in his sleep, he was ill and the enforcement of the fatwa could be avoided. She returns to her first husband.

I am a Pakistani and a proud one too but here I am a DFI'an contributing to a debate so kindly don't drag Pakistan into this, its annoying and often triggers trolls to derail the thread.

I am not challenging that India is not secular but the fatwa exist under the sharia law and you haven't banned it, you can't ban it without bypassin the constitution.

I am not a fan of sharia law but then again who am I? For a large section of muslims sharia and fatwas are
important in religious and social matters, specially disputes hence they look for guidence to the clerics.

In this light I think sharia and fatwa should be allowed and respected but within the Muslim community only.

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Sure be a proud Pakistani.

Debate if you wish.

However, when you write

Imho fatwa should apply to muslims only; non muslims should not be exposed to sharia law.

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. you are commenting about Muslims.

What do you mean that it should apply to Muslims and not non Muslim?

Is that obvious?

It is like saying that the Sun is the Sun and we cannot apply it to call the Moon.

It is in Pakistan where the Sharia is applied on non Muslims. It cannot be done in a secular country. That is the point.

Sir I am quite familiar with the situation you are referring to ...
Honestly 10 years back it was not possible but today yes it is...
I have seen these panchayats .... I know what they do and how they do...I have seen them changing decisions even taking them back...

Hukka paani band... Koi inse baat ni karega..etc etc are past today people also prefer going to courts than going to such org..
You said Haryana...In haryana earlier if a guy marries a girl of same village tehy were killed... now they are banished..Its notcorrect but they are getting liberal...

Teher are courts to protect righst of such people...

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If you feel that - Honestly 10 years back it was not possible but today yes it is, then it indicates you are not reading the newspapers and keeping abreast of the times.

What is happening in Haryana when couples marry out of caste? Google and see.

But the Sarv Khap Panchayat, a conglomerate of 67 khaps in Haryana's Rohtak district, nonchalantly told the court that it was the family members who lynched girls and boys who marry outside their caste or within the same gotra, unable to resist social pressure and taunts of relatives. Regulating the khaps would not reduce honour killings, it said. .....

Amicus curiae Raju Ramachandran explained, "Once the khaps issue an order of censure on matrimonial alliance, the family of the involved boys and girls face the prospect of being socially ostracized. To overcome this, they resort to killing of the couple who defied the khap-imposed social barriers."